California court condemns university’s handling of assault case

A college student who faces serious discipline or expulsion over accusations of sexual assault must be allowed to question his accuser at a hearing before a neutral fact-finder, a state appeals court ruled Friday, joining the ongoing debate about how schools handle allegations of sexual abuse on campus.

The case involves a University of Southern California football player who was expelled for allegedly raping another student without the benefit of a hearing and an opportunity to face his accuser.

In its ruling, the Second District Court of Appeal in Los Angeles said USC’s entire system for investigating complaints of sexual assault was neither fair nor reliable. Those procedures, common to many universities, assign a single investigator to separately interview both parties and their supporting witnesses, determine the facts and impose discipline.

A student can appeal penalties to a student panel and a school official, but prior to that, the system gives one person “the overlapping and inconsistent roles of investigator, prosecutor, fact-finder and sentencer,” Justice Thomas Willhite said in a 3-0 ruling.

The decision overturns the university’s findings that the former football player had violated its code of conduct.

When a student accused of sexual misconduct faces severe penalties and the credibility of witnesses is a central issue, Willhite said, “fundamental fairness requires, at a minimum,” that the school conduct a hearing before an independent decision-maker in which the student can cross-examine the witnesses, or at least decide what questions to ask them.

The ruling comes during a controversy over new rules proposed by U.S. Education Secretary Betsy DeVos to enhance the rights of college students, mostly male, who are accused of sexual wrongdoing, and to heighten the standard for proving those accusations.

DeVos has proposed rules that would require universities to hold hearings where an accused student’s “adviser” could question the accuser. She would also require accusers to prove their case by “clear and convincing evidence,” a more-demanding test than the “preponderance” or more-likely-than-not standard that President Barack Obama’s administration had issued for campuses in 2011. Another change would eliminate the right of the accuser to appeal an unfavorable campus ruling and allow only the accused student to appeal.

Women’s rights advocates have accused DeVos of sex discrimination, but a federal magistrate in San Francisco dismissed their suit in October, saying the case was premature because the proposals were only guidelines. They are due to take effect as binding rules next month.

The USC case dates from October 2014, when the freshman football player, identified only as John Doe by the court, met with “Jane Roe,” a senior and student athletic trainer, in Doe’s campus apartment. Roe, who had been drinking earlier, shared some marijuana with Doe, and the two then had sexual intercourse. He said it was consensual, but she said he grabbed her, tore off her shorts and stopped her from pulling away.

The two had had sexual contact two weeks earlier that stopped short of intercourse, the court said. Roe, who had some small bruises after the October encounter, contacted campus officials, who assigned an investigator to the case. The investigator spoke with both of them and with friends who supported the contrasting accounts — roommates who said Roe had not wanted to have sex with Doe, and friends of Doe’s who were in the apartment and said they heard no sounds of resistance.

The investigator reported Roe’s version of events to Doe but never gave him a chance to question her or suggest questions, Willhite said in Friday’s ruling. He also said the investigator never talked to witnesses who could have suggested a motive for Roe to lie — she could have lost her job as a sports trainer for having consensual sex with an athlete.

Doe was expelled in May 2015 after a student advisory board and the USC vice provost endorsed the investigator’s findings. He was briefly reinstated, but then was expelled again and sentenced to state prison for robbery in April 2016. His lawyer, Mark Hathaway, said the ruling, by removing the finding of sexual assault from his record, would make it possible for Doe to apply to another college after his release.

“Courts are starting to recognize that students in California have rights and that universities have to provide fair hearings,” Hathaway said. “Courts and the federal government are recognizing, when you’re accused of serious matters, universities have to provide due process.”

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.